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Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-227
In the Matter of
) Acct. No. 200832100081
Sling Media, Inc.
) FRN No. 0018087270
)
ORDER
Adopted: September 11, 2008 Released: September 12, 2008
By the Chief, Enforcement Bureau:
1. In this Order, we adopt the attached Consent Decree entered into
between the Enforcement Bureau ("Bureau") and Sling Media, Inc.
("Sling"). The Consent Decree terminates an investigation by the
Bureau against Sling for possible violation of Section 15.117(i)(iv)
of the Commission's Rules ("Rules") regarding the importation or
interstate shipment, after March 1, 2007, of video devices that
receive over-the-air television signals without a digital television
("DTV") tuner.
2. The Bureau and Sling have negotiated the terms of the Consent Decree
that resolve this matter. A copy of the Consent Decree is attached
hereto and incorporated by reference.
3. After reviewing the terms of the Consent Decree and evaluating the
facts before us, we find that the public interest would be served by
adopting the Consent Decree and terminating the investigation.
4. In the absence of material new evidence relating to this matter, we
conclude that our investigation raises no substantial or material
questions of fact as to whether Sling possesses the basic
qualifications, including those related to character, to hold or
obtain any Commission license or authorization.
5. Accordingly, IT IS ORDERED that, pursuant to section 4(i) of the
Communications Act of 1934, as amended, and sections 0.111 and 0.311
of the Commission's Rules, the Consent Decree attached to this Order
IS ADOPTED.
6. IT IS FURTHER ORDERED that the above-captioned investigation IS
TERMINATED.
7. IT IS FURTHER ORDERED that all third-party complaints against Sling
before the Bureau related to the above-captioned-investigation as of
the date of this Consent Decree ARE DISMISSED.
8. IT IS FURTHER ORDERED that a copy of this Order and Consent Decree
shall be sent by first class mail and certified mail, return receipt
requested, to David H. Solomon, Esq., Wilkinson Barker Knauer, LLP,
2300 N St., NW, Suite 700, Washington, DC 20037.
FEDERAL COMMUNICATIONS COMMISSION
Kris Anne Monteith
Chief, Enforcement Bureau
Before the
Federal Communications Commission
Washington, D.C. 20554
)
) File No. EB-07-SE-227
In the Matter of
) Acct. No. 200832100081
Sling Media, Inc.
) FRN No. 0018087270
)
CONSENT DECREE
The Enforcement Bureau ("Bureau") and Sling Media, Inc., by their
authorized representatives, hereby enter into this Consent Decree for the
purpose of terminating the Commission's Investigation into whether Sling
violated Section 15.117(i)(iv) of the Commission's Rules ("Rules")
regarding the importation or interstate shipment, after March 1, 2007, of
video devices that receive over-the-air television signals without a
digital television ("DTV") tuner.
I. DEFINITIONS
1. For the purposes of this Consent Decree, the following definitions
shall apply:
a. "Act" means the Communications Act of 1934, as amended, 47 U.S.C. S:
151 et seq.
b. "Adopting Order" means an Order of the Bureau adopting the terms of
this Consent Decree without change, addition, deletion, or
modification.
c. "Bureau" means the Enforcement Bureau of the Federal Communications
Commission.
d. "Commission" and "FCC" mean the Federal Communications Commission and
all of its bureaus and offices.
e. "DTV" means digital television.
f. "Effective Date" means the date on which the Bureau releases the
Adopting Order.
g. "Investigation" means the investigation commenced by the Bureau's July
31, 2007 Letter of Inquiry regarding whether Sling violated Section
15.115(i)(iv) of the Rules, by importing or shipping interstate, after
March 1, 2007, video devices that receive over-the-air television
signals but do not include a DTV tuner.
h. "Parties" means Sling and the Bureau.
i. "Rules" means the Commission's regulations found in Title 47 of the
Code of Federal Regulations.
j. "Sling" means Sling Media, Inc. and its subsidiaries and its and their
predecessors-in-interest and successors-in-interest.
k. "Slingbox" means a device manufactured by or for Sling that is an
Internet Protocol ("IP")-enabled digital device that permits a user to
watch television programming, received or recorded on his or her home
entertainment system, via a remote Internet or IP connection from a
laptop, mobile phone, or other computing device.
II. BACKGROUND
2. Section 15.117(i)(iv) of the Commission's Rules requires that new
video devices that receive television signals, imported into the
United States or shipped interstate, be equipped with a DTV tuner,
effective March 1, 2007. The Bureau issued a Letter of Inquiry to
Sling regarding Sling's compliance with this rule on July 31, 2007.
Sling responded on August 30, 2007, and filed a supplemental response
on October 11, 2007.
III. TERMS OF AGREEMENT
3. Adopting Order. The Parties agree that the provisions of this Consent
Decree shall be subject to final approval by the Bureau by
incorporation of such provisions by reference in the Adopting Order
without change, addition, modification, or deletion.
4. Jurisdiction. Sling agrees that the Bureau has jurisdiction with
respect to the subject matter of this Consent Decree and has the
authority to enter into and adopt this Consent Decree.
5. Effective Date; Violations. The Parties agree that this Consent Decree
shall become effective on the date on which the Bureau releases the
Adopting Order. Upon release, the Adopting Order and this Consent
Decree shall have the same force and effect as any other Order of the
Bureau. Any violation of the Adopting Order or of the terms of this
Consent Decree shall constitute a separate violation of a Bureau
Order, entitling the Bureau to exercise any rights and remedies
attendant to the enforcement of a Bureau Order.
6. Termination of Investigation. In express reliance on the covenants and
representations in this Consent Decree and to avoid further
expenditure of public resources, the Bureau agrees to terminate its
Investigation. In consideration for the termination of said
Investigation and the provisions set forth herein, Sling agrees to the
terms, conditions, and procedures contained herein. The Bureau further
agrees that in the absence of new material evidence, the Bureau will
not use the facts developed in this investigation through the
Effective Date of the Consent Decree, or the existence of this Consent
Decree, to institute, on its own motion, or recommend to the
Commission, any new proceeding, formal or informal, or take any action
on its own motion, or recommend to the Commission any action, against
Sling concerning the matters that were the subject of the
investigation. The Bureau also agrees that it will not use the facts
developed in this investigation through the Effective Date of this
Consent Decree, or the existence of this Consent Decree, to institute
on its own motion, or recommend to the Commission, any proceeding,
formal or informal, or take any action on its own motion, or recommend
to the Commission any action, against Sling with respect to Sling's
basic qualifications, including its character qualifications, to be a
Commission licensee or to hold Commission authorizations.
7. Compliance. For purposes of settling the matters set forth herein,
Sling agrees that, as of the Effective Date, all new Slingboxes it
imports into the United States or ships in interstate commerce that
include a tuner that is capable of receiving over-the-air television
signals will include a DTV tuner to the extent required by Section
15.117(i)(iv) of the Commission's Rules. Sling will file compliance
reports with the Commission twelve months after the Effective Date,
and two years after the Effective Date. Each compliance report shall
include a compliance certificate from the undersigned Sling official
(or a similar official), as an agent of Sling, stating that, to the
best of the official's personal knowledge, Sling has met the
above-referenced compliance commitment. All compliance reports shall
be submitted to Chief, Spectrum Enforcement Division, Enforcement
Bureau, Federal Communications Commission, 445 12th Street, S.W.,
Washington, D.C. 20554. This paragraph will expire two years from the
Effective Date of the Adopting Order.
8. Voluntary Contribution. Sling agrees that it will make a voluntary
contribution to the United States Treasury in the amount of $42,500.
The payment will be made within 30 days after the Effective Date of
the Adopting Order. The payment must be made by check or similar
instrument, payable to the order of the Federal Communications
Commission. The payment must include the Account Number and FRN Number
referenced in the caption to the Adopting Order. Payment by check or
money order may be mailed to Federal Communications Commission, P.O.
Box 979088, St. Louis, MO 63197-9000. Payment by overnight mail may be
sent to U.S. Bank - Government Lockbox #979088, SL-MO-C2-GL, 1005
Convention Plaza, St. Louis, MO 63101. Payment by wire transfer may be
made to ABA Number 021030004, receiving bank TREAS/NYC, and account
number 27000001. For payment by credit card, an FCC Form 159
(Remittance Advice) must be submitted. When completing the FCC Form
159, enter the Account number in block number 23A (call sign/other
ID), and enter the letters "FORF" in block number 24A (payment type
code). Sling will also send electronic notification on the date said
payment is made to Kathy.Berthot@fcc.gov.
9. Waivers. Sling waives any and all rights it may have to seek
administrative or judicial reconsideration, review, appeal or stay, or
to otherwise challenge or contest the validity of this Consent Decree
and the Adopting Order, provided the Bureau issues an Adopting Order
adopting the Consent Decree without change, addition, modification, or
deletion and, in the absence of new material evidence, no further
action is taken against Sling with respect to the matters set forth
herein. Sling shall retain the right to challenge Commission
interpretation of the Consent Decree or any terms contained herein. If
either Party (or the United States on behalf of the Commission) brings
a judicial action to enforce the terms of the Adopting Order, neither
Sling nor the Commission shall contest the validity of the Consent
Decree or the Adopting Order, and Sling shall waive any statutory
right to a trial de novo, provided the Bureau issues an Adopting Order
adopting the Consent Decree without change, addition, modification, or
deletion and, in the absence of new material evidence, no further
action is taken against Sling with respect to the matters set forth
herein. Sling may, however, present evidence that it has not violated
the Consent Decree. Sling hereby agrees to waive any claims it may
otherwise have under the Equal Access to Justice Act, 5 U.S.C. S: 504
and 47 C.F.R. S: 1.1501 et seq., relating to the matters addressed in
this Consent Decree.
10. Invalidity. In the event that this Consent Decree is rendered invalid
by any court of competent jurisdiction, it shall become null and void
and may not be used in any manner in any legal proceeding.
11. Subsequent Rule or Order. The Parties agree that if any provision of
the Consent Decree conflicts with any subsequent rule or Order adopted
by the Commission (except an Order specifically intended to revise the
terms of this Consent Decree to which Sling does not expressly
consent) that provision will be superseded by such Commission rule or
Order.
12. Successors and Assigns. Sling agrees that the provisions of this
Consent Decree shall be binding on its successors, assigns, and
transferees.
13. Final Settlement. The Parties agree and acknowledge that this Consent
Decree shall constitute a final settlement between the Parties. The
Parties further agree that this Consent Decree does not constitute
either an adjudication on the merits or a factual or legal finding or
determination regarding any compliance or noncompliance with the
requirements of the Act or the Commission's Rules and Orders. The
Parties agree that this Consent Decree is for settlement purposes only
and that by agreeing to this Consent Decree, Sling does not admit or
deny noncompliance, violation or liability for violating the Act or
Rules in connection with the matters that are the subject of this
Consent Decree.
14. Modifications. This Consent Decree cannot be modified without the
advance written consent of both Parties.
15. Paragraph Headings. The headings of the Paragraphs in this Consent
Decree are inserted for convenience only and are not intended to
affect the meaning or interpretation of this Consent Decree.
16. Authorized Representative. Each party represents and warrants to the
other that it has full power and authority to enter into this Consent
Decree.
17. Counterparts. This Consent Decree may be signed in any number of
counterparts (including by facsimile), each of which, when executed
and delivered, shall be an original, and all of which counterparts
together shall constitute one and the same fully executed instrument.
________________________________
Kris Anne Monteith
Chief, Enforcement Bureau
Federal Communications Commission
________________________________
Date
________________________________
Jason Krikorian
Senior Vice President
Sling Media, Inc.
________________________________
Date
47 C.F.R. S: 15.117(i)(iv).
47 U.S.C. S: 154(i).
47 C.F.R. S:S: 0.111, 0.311.
47 C.F.R. S: 15.117(i)(iv).
Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
Enforcement Bureau, to Blake Krikorian, CEO, Sling Media, Inc. (July
31, 2007) ("July 31, 2007 LOI").
47 C.F.R. S: 15.117(i)(iv).
July 31, 2007 LOI.
Letter from Glenn B. Manishin, Counsel for Sling, to Kathryn S.
Berthot, Chief, Spectrum Enforcement Division, Enforcement Bureau
(Aug. 30, 2007); Letter from Glenn B. Manishin, Counsel for Sling, to
Kathryn S. Berthot, Chief, Spectrum Enforcement Division, Enforcement
Bureau (Oct. 11, 2007).
Federal Communications Commission DA 08-2043
2
Federal Communications Commission DA 08-2043